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Herrick Loses 2nd Circuit Appeal in Grindr Cyberharassment Case

Posted on: March 28th, 2019 by Art Leonard No Comments

A unanimous three-judge panel of the New York-based U.S. Court of Appeals for the 2nd Circuit issued a ruling on March 27 stating total agreement with District Judge Valerie Caproni’s earlier ruling in January 2018 that Grindr enjoys totally immunity from any liability for the harms suffered by Matthew Herrick, a gay Manhattanite whose ex-boyfriend created fake Grindr profiles in Herrick’s name that led more than a thousand people to contact Herrick at home and at work for “fetishistic sex, bondage, role playing, and rape fantasies.”

Unlike Judge Caproni, the appellate panel, consisting of Circuit Judges Dennis Jacobs, Reena Raggi, and Raymond J. Lohier, Jr., omitted some of the gory details from their brief “summary order” which does not have “precedential effect” but which nonetheless seems totally consistent with other court decisions interpreting Section 230 of the Communications Decency Act, a federal statute that Congress intended to crack down on internet pornography by requiring service providers, among other things, to enable parental controls over what minors can access on-line.

Herrick achieved some initial success when he first filed suit in a New York State court, getting a motion judge to grant a temporary restraining order requiring Grindr to disable the fake profiles.  But Grindr immediately removed the action to federal court and moved to dismiss it, citing Section 230, which as relevant to this lawsuit says: “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider.”

In other words, as found by Judge Caproni and the 2nd Circuit judges, Grindr is not responsible for the content of what users of its app post there.   Of course, there is nothing in this statute to prevent Herrick from suing his ex-boyfriend using various state law theories, but Grindr is essentially immune from liability for harm caused by content posted on its app by users.

Herrick’s attorneys ended up amending the original complaint that he had filed by himself in state court, in order to allege a wide array of possible legal theories seeking to escape Section 230 immunity, but to no avail.  The court found that all of Herrick’s claims arose out of “information provided by another information content provider” – that is, his ex-boyfriend – and thus all of them fell within the broad sphere of Section 230.  The provision has been liberally interpreted by federal courts to avoid imposing an extremely burdensome censorship obligation on operators of what the statute calls “interactive computer services,” which include “any information service, system, or access software provider that provides or enables computer access by multiple users to a computer server.”

As Judge Caproni found in her earlier decision, courts have found that “social networking sites like Facebook.com, and online matching services like Roommates.com and Matchmaker.com,” fall within this category, so its application to Grindr is not controversial.

Trying to get around this, the lawyers argued that Grindr is providing a defective product and is misrepresenting the safety of its site for users, but the court found that Grindr’s Terms of Service published on its site provide adequate warnings.  “The district court determined that there was no material misrepresentation by Grindr because the allegedly misleading statements identified in the Amended Complaint – Grindr’s Terms of Service and its ‘community values page’ – do not represent that Grindr will remove illicit content or take action against users who provide such content,” wrote the court of appeals, “and the Terms of Service specifically disclaim any obligation or responsibility to monitor user content.”

The court said that even if it assumed that Herrick reasonably relied on assurances when he created his own Grindr account in 2011, “his claim would fail for lack of causation.” That’s because after he met his ex-boyfriend in 2015, he deactivated his Grindr account, long before the harassment following their breakup occurred.  “Herrick therefore could have suffered the exact same harassment if he had never seen the Terms of Service or created a Grindr account,” wrote the court, “so his injury is not a direct and proximate result of his reliance on (alleged) misrepresentations.”

Furthermore, Grindr’s Terms of Service were full of disclaimers for any responsibility for what users of the service posted there, which makes any reliance claim not credible.

Ultimately, said the court, quoting from a decision by the San-Francisco-based 9th Circuit Court of Appeals, under Section 230 an interactive computer service “will not be held responsible unless it assisted in the development of what made the content unlawful” and cannot be held liable for providing “neutral assistance” in the form of tools and functionality available equally to bad actors and the app’s intended users.”